Class Says Government Owes Them Medical Care

OAKLAND, Calif. (CN) – A class of veterans who say they were used as guinea pigs for Cold War-era drug experiments continue to argue that the Department of Defense and Department of the Army should provide them with ongoing medical care and information about the tests. Vietnam Veterans of America filed a class action against the Army and CIA in 2009, claiming that at least 7,800 soldiers had been used as guinea pigs in Project Paperclip. Soldiers were allegedly administered at least 250 and perhaps as many as 400 types of drugs, among them Sarin, one of the most deadly drugs known, amphetamines, barbiturates, mustard gas, phosgene gas and LSD. Using tactics it often attributed to the Soviet enemy, the U.S. government sought drugs to control human behavior, cause confusion, promote weakness or temporary loss of hearing and vision, induce hypnosis and enhance a person’s ability to withstand torture, according to the complaint. The veterans say that some soldiers died, and others suffered seizures and paranoia. They say the CIA knew it had to conceal the tests from “enemy forces” and the “American public in general” because the knowledge “would have serious repercussions in political and diplomatic circles and would be detrimental to the accomplishment of its mission.” After two failed attempts to dismiss the action, the defendants succeeded last year in tossing claims against Attorney General Eric Holder and the CIA. The Department of Defense and Department of the Army are still on the hook, In September, U.S. District Judge Claudia Wilken granted the plaintiffs class action status, which could make thousands of veterans eligible for three types of relief. The trial could force government agencies to notify participants of the known health impacts of the substances they received, mandate health care for those who have suffered diseases and guarantee due process for veterans denied benefits. The plaintiffs moved for partial summary judgment. “Defendants’ own regulations and directives expressly mandate that they provide this relief to test subjects. Yet, for decades, they have failed to do so,” the veterans said. The crux of the veterans’ argument is that Administrative Procedure Act obligates the defendants to provide notice to test subjects and to provide them medical care. The veterans also cite an Army regulation involving the use of volunteers as research subjects. The 1962 regulation states that participants “will be told as much of the nature, duration, and purpose of the experiment, the method and means by which it is to be conducted, and the inconveniences and hazards to be expected, as will not invalidate the results.” It also says subjects “will be fully informed of the effects upon [the test subject’s] health or person which may possibly come from his participation in the experiment.’ The Army regulation was updated in 1990, and the veterans say the defendants have a duty to provide notice “even after the individual volunteer has completed his or her participation in research.” The updated regulation also requires the defendants to “establish a system which will permit the identification of volunteers who have participatedin research,” the veterans say. The veterans also say the court recognized the defendants’ duty to provide ongoing medical care in a 2010 order. Judge Wilken rejected the defendants’ argument that the Army regulation about medical care was “an additional safeguard,” to address medical needs during experiments, the veterans say. “The safeguards were put in place to protect a volunteer’s health. The fact that symptoms appear after the experiment ends does not obviate the need to provide care,” the judge wrote. The plaintiffs also note that in her September class certification order, Judge Wilken said “nothing in any version of the regulations or other documents … limits these forward looking provisions to those people who became test volunteers after the regulation was created.” Judge Wilken is scheduled to rule on the summary judgment motion on March 14 of next year. The veterans are represented by Gordon P. Erspamer, Eugene Illovsky and Stacey M. Sprenkel of Morrison & Foerster LLP.